As employee complaints about safety and the availability of personal protection equipment (“PPE”) mount, employers should remember that the law protects employees engaged in concerted action. Specifically, the National Labor Relations Act (“NLRA”) protects the right of employees “to engage in… concerted activities for the purpose of… mutual aid or protection.” These protections apply to both unionized and non-unionized employees.
Employee complaints over COVID-19 concerns may well qualify as concerted action. For example, employee complaints about sanitization procedures, employee hygiene, proximity of employees and customers, and availability of PPE, would all qualify as concerted action, if made on behalf of a group of employees and not just the complaining individual. Under the NLRA, these communications are protected even if they are made in a rude or offensive manner. Employees with concerns related to COVID-19 also may be protected under other legal theories, including under OSHA, state and local health orders, and public policy tort claims.
A Timely “Case Study”
In what seems like a shot across the bow, on March 30, 2020, the National Labor Relations Board (the “NLRB”) has issued a new, timely opinion regarding protections for non-union employees who complain about working conditions.
In Maine Cost Regional Health Facilities, a non-union hospital employee, Karen Young, sent a letter to the editor of the local newspaper in which she expressed concerns about staffing shortages and voiced support for the union’s efforts to address these issues. After her letter was published, the hospital discharged her for violation of its media policy, which prohibited employees from talking to the media about the hospital without the involvement of the public relations department. The NLRB held that Ms. Young was unlawfully discharged for engaging in protected concerted and union activity.
Young’s letter, the NLRB held, constituted concerted activity because it “addresse[d] terms and conditions of employment not only because… patient care is inextricably tied to hospital employees’ working conditions, but also because she referenced employees’ complaints about the burdens falling on them as employees.” Although she did not discuss her letter with other employees before submitting it, it was deemed “concerted” because she “join[ed] forces” with employees by supporting their union petition. The NLRB ordered that the Hospital instate Ms. Young and awarded her backpay.
The NLRB further held that the Hospital’s original media policy was unlawful. However, after the hospital terminated Young, it added the following sentence to the Media Policy: “This policy does not apply to communications by employees, not made on behalf of [the Hospital], concerning a labor dispute or other concerted communications for the purpose of mutual aid or protection protected by the National Labor Relations Act.” The NLRB held that this additional language made the policy lawful, because a reasonable employee would not interpret it as interfering with his Section 7 rights.
Employers should take note of this decision, which reaffirms the rights of employees to complain and raise concerns about working conditions. In addition, it confirms that in the healthcare setting, employees should not be disciplined for raising concerns about staffing levels or patient care.
Bottom line–employers should proceed with caution when considering disciplining or firing employees who complain or who raise concerns. Claims brought by employees that they have suffered an adverse employment action because they engaged in such conduct are investigated by the NLRB. The NLRB has the authority to order that an employee terminated in retaliation for engaging in protected activity be reinstated with back pay and benefits.
In addition to this and other legal risks (e.g., claims of public policy or OSHA violations), such action also could significantly affect employee morale and negatively impact the public’s perception of the company. Dealing with the underlying concerns, rather than “shooting the messenger,” is often the best reaction.
Also, in light of the NLRB’s decision, employers would be wise to review their media and social media policies to ensure they do not violate the NLRA.
For assistance on responding to employee complaints or protests, or other compliance issues, contact the authors of this Alert or any other member of Dykema’s Labor and Employment Law Group.
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